“The All Writs Act Does Not Provide A Basis To Conscript Apple To
Create Software Enabling The Government To Hack Into iPhones” opens the
“arguments” section of the motion Apple filed
this afternoon against a court order that says Apple needs to help the
FBI unlock one of the San Bernardino shooting suspects' phones. In one
weirdly formatted line, we have the centerpiece of much of the modern
digital economy, an overstretched law from 1789, and a very curious
definition of the word “conscript.”

The motion to vacate is the strongest move yet from Apple in its growing legal battle with the FBI
over the specifics of a phone used by San Bernardino shooter Syed
Farook, and the broader fight over the security and privacy of our
increasingly vital mobile devices.

The FBI wanted to brute force its way into the phone, by guessing at
the phone’s password as many times as they could until they got it
right. A feature on the operating system of the iPhone 5C is designed to
protect against this: guess the password ten times, and the phone wipes
out all user data. Rather that guess wrong and risk losing any useful
information Farook may have had, the FBI is instead asking Apple to
create and sign a software update that will disable the auto-wipe
feature.

Apple is refusing to create this software. Shortly after a judge ordered Apple to comply with the FBI's request last week, Apple CEO Tim Cook published a public letter on Apple's website, saying this was against the interests of Apple, its customers, and the basic security of phones themselves.

The information the FBI is seeking in this case isn't coming from
iCloud, it’s cloud storage setup, which Apple has provided, and will
continue to turn over to the courts when served with a proper warrant.
Because iCloud information is held on Apple servers, it’s Apple’s
information to hand over. But information stored on the phone's internal
hard drive or cached on the phone from other third-party apps and
services, Apple argues, isn’t the company's to turn over.

To highlight this, Apple executives on a media call referred to the
software they’re being asked to build as "GovOS," a play on Apple's iOS
operating system. Apple makes it very clear in its motion that this
isn’t just about one phone, but about the sanctity of all smartphones.

This is not a case about one isolated iPhone. Rather, this case is
about the Department of Justice and the FBI seeking through the courts a
dangerous power that Congress and the American people have withheld:
the ability to force companies like Apple to undermine the basic
security and privacy interests of hundreds of millions of individuals
around the globe. The government demands that Apple create a back door
to defeat the encryption on the iPhone, making its users’ most
confidential and personal information vulnerable to hackers, identity
thieves, hostile foreign agents, and unwarranted government
surveillance. The All Writs Act, first enacted in 1789 and on which the
government bases its entire case, “does not give the district court a
roving commission” to conscript and commandeer Apple in this manner.

The implications for Apple are clear: if they follow this one
exception, every phone and every device they make will be compromised.
It’ll be like requiring all suitcase locks to be opened by the same
government-held master key, and then being surprised when that master
key is copied and used by people besides the government to steal
belongings. (This is a real thing that happened). Apple continues:

The order demanded by the government compels Apple to create a new
operating system—effectively a “back door” to the iPhone—that Apple
believes is too dangerous to build. Specifically, the government would
force Apple to create new software with functions to remove security
features and add a new capability to the operating system to attack
iPhone encryption, allowing a passcode to be input electronically. This
would make it easier to unlock the iPhone by “brute force,” trying
thousands or millions of passcode combinations with the speed of a
modern computer. In short, the government wants to compel Apple to
create a crippled and insecure product. Once the process is created, it
provides an avenue for criminals and foreign agents to access millions
of iPhones. And once developed for our government, it is only a matter
of time before foreign governments demand the same tool.

Much of the case hinges on alternative ways for the government to
address the trade-off between security and privacy. The motion is a
wagging finger at the failure of Congress to craft and pass meaningful
legislation for circumstances like this, and that in their failure, law
enforcement is forced to use a broad and archaic law.

This motion also puts Apple very squarely at a fight that will define
much of security for the next century: are normal people allowed to use
the encryption that makes them and their personal information safest,
even if that safe encryption can at times shield terror suspects? Or
will we have a world of back doors, where encryption is so easily
circumvented by the government, malicious actors, and bored hackers so
often as to be functionally meaningless?

Apple unequivocally sides with a greater good of strong, meaningful encryption for all. We’ll see if the courts do, too.